Alabama

Attorney Stan McDonald argues before the Huntsville school board Thursday as his client, Eleanor Burks, center, looks on. Burks was appealing her 15-day suspension for cheating on a May standardized test given to her class at Martin Luther King Jr. Elementary School. (Crystal Bonvillian/cbonvillian@al.com)

HUNTSVILLE, Alabama -- Arguments turned acrimonious Thursday afternoon at the personnel hearing of a Martin Luther King Jr. Elementary teacher accused of cheating on a standardized test this past spring.

Eleanor Burks, a longtime fourth-grade teacher at MLK, went before the board to appeal her 15-day suspension in the May 5 incident. Cathy McNeal, director of assessment and accountability for the school district, testified before the school board that Burks stopped a student who was incorrectly answering a question on an ACT Aspire writing test and asked him if he had read the directions.

The student ultimately erased and reworked his answer.

The board upheld Burks' suspension. Board vice president Laurie McCaulley addressed school district employees afterward, asking that they all review the policies and procedures they must follow to do their jobs properly.

"We don't want to see nothing like this come before us again," she said.

"I think we're sending an important message to the public today that we will not let any testing irregularities go," said board member Jennie Robinson.

Prior to the board vote, the hearing turned ugly as Stan McDonald, Burks' lawyer, accused the board of violating its own hearing policy under the Students First Act, the law that in 2011 replaced the state's previous tenure laws for teachers. McDonald objected to McNeal's testimony because she was not a sworn witness and because he was not allowed to cross-examine her.

He said the rules for suspension hearings are not the same as those for terminations and that testimony is not allowed.

McCaulley, who was overseeing the hearing in board president David Blair's absence, told McDonald the board was following the same procedure it follows for all employee hearings under the law. She also said that Burks would be allowed to call witnesses, an assertion that McDonald vehemently refuted.

"This is the practice of the board," McCaulley said. "I would ask you to respect the board."

When McDonald continued to argue his case, Taylor Brooks, the lawyer representing the school district, argued that McDonald should be ejected from the hearing.

"This attorney either needs to let the hearing move forward or he needs to be excused," Brooks said.

"Cute, that's real cute," McDonald said to Brooks.

Robinson told McDonald she hoped that his case would be strong enough to refute the testimony being given.

"If you don't have a strong enough case, maybe you need to go find something else to do," Robinson said.

As a security guard watched from the back of the board room, testimony continued with McNeal explaining that a witness saw Burks look at the student's test booklet as she walked by and address his incorrect answer. Afterward, the witness saw the boy vigorously erasing his answer and redoing it.

McNeal testified that, based on the witness statement and Burks' own account of what happened, she violated the test security policy. The Alabama State Department of Education subsequently invalidated the tests of the 15 students in Burks' classroom that day.

The violation was a serious one, McNeal said.

"When you affect the reliability of any assessment, you're affecting the tests of all students, not just this one classroom," McNeal said.

When a test is invalidated, she said, it must be taken over again, and that costs the state money. That second test jeopardizes the testing process.

"Standardized test procedures, to me, are the most important thing in the standardized testing process," McNeal said. "If the students aren't taking the same test, they are no longer standardized."

MLK principal Jennifer Douthit also testified about the allegations, and told the board about the boy's own version of what happened. When questioned, the boy said that Burks told him his answer was wrong and read the directions to him before allowing him to answer the question again.

"Her action caused an action on the student's part that would change the student's score," Douthit said. "That, according to the manual, would be a form of cheating."

Douthit testified that she wrote Burks up for the violation. The teacher was subsequently suspended for 15 days.

When it was time for Burks to present her case, McDonald again brought up his due process argument.

"Sir, are you going to use up all her time to argue something that has already been decided?" McCaulley said.

"I'm not sure there are rules on what I can or cannot say," McDonald said.

"If you want to waste it, then go," McCaulley said.

He proceeded to attack the wording of the board's rules for employee hearings, which he argued allows evidence to be presented, but not testimony.

"I think I'm done hearing about procedure," Robinson said. "I'd like to hear evidence. I think this is (Burks') opportunity to speak before the board."

"Don't do this to your client," McCaulley said. "Please let her side be heard."

As he continued to argue, McCaulley and Robinson pleaded with him to present Burks' evidence on why she should not be suspended.

After collecting his thoughts, McDonald argued that the alleged cheating was not reported until several days after the fact, which he said circumvented procedure. He said it was reported to Douthit, not the testing coordinator, which also violated procedure.

He also argued that she was under duress when she was questioned about what happened and that her statement, and that of the student, was not taken until more than two weeks after the incident.

Burks admitted to the board that she asked the student if he read the instructions and read them to him when he said no. She said, however, that she did not direct him to erase his answer.

When he asked if he should erase his answer, she told him, "You may want to."

Robinson asked Burks if the student went back and changed his answer based on her intervention. She said that she did not know, and said the child "is a very smart boy."

McDonald said there were three points to the case: Did Burks help a student cheat? Should the board believe all the allegations and evidence? Is the evidence ample and provable enough? He said that Burks' actions did not constitute cheating under the state's policy.

The board disagreed, voting 3-0 to uphold the suspension. Blair and board member Mike Culbreath were absent from the hearing.

After the hearing, McDonald said he would immediately start looking into what he could do to have the board's decision overturned. He described the hearing and the board's decision as a "very significant trampling" of due process.